Enforcing your terms and conditions internationally

Article reference: UK-IA-ECM07

Last updated: July 2016|5 min read

If you (or your company) are based in the UK, then you are subject to law of England and Wales, Scotland, or Northern Ireland as the case may be. Although each jurisdiction has some different law, there are very few differences in the round that affect terms and conditions.

For example, it would be unusual for a term in the T&C of a Scottish company to be unenforceable if the company sells to a Welsh customer.

It is, however, possible for your some of your terms not to be binding in other countries of the world.

If you have set up your terms and conditions such that a UK judge would deem them to be binding within the UK, the problems you are most likely to encounter with customers abroad are interpretation,differences in local law and terms brought in from other contracts.

A judge in any country will decide a case based on the words of the contract. Just as in the UK, if the meaning of the words is unclear then a judge may rule that some of the contract is void. So if you sell abroad it is even more important that your business terms are drawn in simple language, so that both your customer and any foreign judge could not fail to interpret them in the same way as a British native speaker would do.

You should make sure that your terms do not include legal jargon, technical jargon relating to your industry (as far as possible), complex sentence structures and uncommon words.

An advantage of using T&C drawn for the UK is that there are few legal systems older than that of England. Over time, through empire building or through trade we have given our legal system to most countries where English is now the language of law. Some laws in some jurisdictions have changed further from the English model than others, but English common law is the basis of law in many of the countries with which you may trade, and contract law (most of that within terms and conditions documents) tends to be very similar in such countries.

Most West European countries have their own slightly different legal systems. However, the necessity to trade and, more recently, the European Union, has pushed all European countries into acceptance of common basic law, even though many finer points differ one from another.

Well drafted terms and conditions (such as those from Net Lawman) provide that the reader should not rely on any other document as a term of the contract or an inducement to enter into it. This is intended to avoid claims of misrepresentation or that something different was said on the phone, in a letter, or on your website. But simply excluding liability is not enough - anywhere. You should make absolutely sure that you do not make claims in any other document or medium.

There is no way to protect yourself from a determined and belligerent claimant, even at home. In some countries such as the USA, where lawyers are paid on success, you may find a customer issues proceedings based as much on strategy as law, particularly if you are unlikely to afford to fight.

Any court in any country may claim jurisdiction despite any words in your contract to say that the agreement must be construed according to UK law. However, the judgement, regardless of which country in which the case is heard, will be based on the wording of the contract. If your T&C have been drawn with consideration as to how they may be interpreted in some other place and if they have been written in clear, concise and plain language, you should have a much better chance of successful defence regardless of where a hearing takes place.

There are international courts to resolve international disputes, but unless you are selling high value goods you will probably wish to avoid the expense of these. You could specify a detailed method of mediation or arbitration in your T&C but that may still not prevent a party from claiming in a foreign court.

Your contract is only safe in money terms if you obtain cash in advance, but unfortunately, you are never safe from a vindictive or determined litigator with a deep pocket.

You can limit your personal liability by putting your business into a limited company.

A Net Lawman document is almost certainly clearer than one drawn by your local solicitor and therefore more likely to “hold water” in a foreign court because it is drawn to balance the requirement for a wide “sweep-up” with the necessity for precision.

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